Sotomayor Pick Guarantees a Fight

By picking Appeals Court Judge Sonia Sotomayor for the Supreme Court, President Obama has rewarded a wide range of groups: liberals, Hispanics -- even Republican conservatives, who were dying for a nominee who would reinvigorate their base.

Even before the official announcement this morning, conservative groups were sending reporters e-mails blasting the choice, using words that conveyed their excitement over the impending fight. "Judge Sotomayor is a liberal judicial activist of the first order," wrote Wendy Long, counsel for the Judicial Confirmation Network, a conservative group dedicated to defeating Democratic nominees. "She thinks her own personal political agenda is more important than the law as written. She thinks that judges should dictate policy, and that one's sex, race, and ethnicity ought to affect the decisions one renders from the bench."

Liberal groups quickly responded with their own e-mails insisting Sotomayer is no judicial activist. Doug Kendall, President of the Constitutional Accountability Center (where do they come up with these names?) quoted her as saying, "The duty of a judge is to follow the law, not to question its plain terms."

Sotomayor, 54, was born in the Bronx to Puerto Rican parents of modest means and raised in a public housing project. At age 8, she was diagnosed with diabetes, forcing the Nancy Drew fan to give up her hope of becoming a detective. A year later her father died, leaving her mother to bring up Sotomayor and her brother on her nurse's salary. Her mother worked two jobs to send the children to Catholic schools and Sotomayor graduated from Princeton and Yale Law School. Her story isn't all that different from Obama's, who was reportedly taken by Sotomayer when she spent six hours at the White House last week.

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Sotomayor was first nominated to the bench by President George H.W. Bush in 1992, but that won't sway her ideological enemies. In fact, when President Clinton elevated her to the U.S. Court of Appeals in New York City, Republicans delayed confirmation for a year.

Her record on and off the bench will give opponents plenty to work with. In a 2001 speech, she declared that the ethnicity and sex of a judge "may and will make a difference in our judging." She's also on record as saying that a court of appeals is where policy is made. She went on to say she wasn't advocating that, only recognizing it as a matter of fact, but that won't help her now, as Long's e-mail shows.

Her high profile cases include one now before the Supreme Court -- her decision to reject a challenge by a white firefighter in New Haven who said he was unfairly denied a promotion when the results of a qualifying test was thrown out because no minorities had passed.

Republicans are promising a lengthy and careful examination, insisting on 60 days to prepare for any confirmation hearings -- never mind that under Bush they argued that all nominees should be confirmed within 60 days. The hearings are likely to produce a lot of fireworks from senators, but if recent history is a guide, Sotomayor will be carefully coached to avoid giving away too much. In the end, she's almost certain to win confirmation. Republicans will put up enough of a fight to make their base happy, but they know they can't win and they don't want to antagonize Hispanic voters any more than they already have in recent years.

The truth is, there's a good case to be made for not even holding hearings. Jeffrey Toobin's recent article in the New Yorker points out that much of what Chief Justice John Roberts promised the Judiciary Committee in his hearing turned out not to mean much. In fact, hearings are a relatively recent practice, and in many instances, they do more harm than good, as Stephen L. Carter argued recently in the New York Times.

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